NHL covers its legal backside in weighing Shawn Thornton suspension

Cam Cole, Vancouver Sun columnist12.13.2013

Brooks Orpik of the Pittsburgh Penguins is attended to by medical staff after an altercation with Shawn Thornton of the Boston Bruins during Saturday’s game at TD Garden in Boston.Jared Wickerham
/ Getty Images

Boston Bruins Shawn Thornton (22) looks on during a break in Boston, Nov. 30, 2013. THE CANADIAN PRESS/AP, Mary Schwalm

Brooks Orpik of the Pittsburgh Penguins was removed from the ice by a stretcher after Boston Bruins' Shawn Thornton earned a match penalty for the incident in Boston on Saturday.The Associated Press
/ The Associated Press

Brooks Orpik of the Pittsburgh Penguins is carted off of the ice on a stretcher by the medical staff in the first period after an altercation with Shawn Thornton of the Boston Bruins during the game at TD Garden on Dec. 7, 2013 in Boston, Massachusetts.Jared Wickerham/Getty Images

Brooks Orpik of the Pittsburgh Penguins is tended to by the medical staff on the ice in the first period after an altercation with Shawn Thornton of the Boston Bruins in the first period during the game at TD Garden on December 7, 2013 in Boston.Jared Wickerham, Getty IMages
/ Canada.com

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VANCOUVER — Nearly a decade ago, sitting in a boardroom in the National Hockey League’s Toronto office listening to Colin Campbell explain the Todd Bertuzzi suspension, life was simpler.

Bertuzzi’s assault on Colorado’s Steve Moore had occurred on Monday night, March 8, 2004. On Wednesday, the Vancouver Canucks winger had his hearing. The next morning, dozens of us were herded into Campbell’s presence to hear him pronounce sentence: the remainder of the regular season and playoffs, further term to be added, or not, at the discretion of commissioner Gary Bettman whenever the NHL got back to work after the lockout.

The whole process had taken 58 hours, more or less, from crime to punishment.

So why is it taking a week for Brendan Shanahan, Campbell’s successor, to sort out what appears to be a relatively straightforward case of an enforcer, Boston’s Shawn Thornton, stepping miles over the line of accepted goonery last Saturday to pull Pittsburgh’s Brooks Orpik out of a scrum by the back of his collar, slew-foot him to the ice and punch him unconscious?

Answer: because life isn’t simple any more. Because of class-action suits and the fear of liability and the NHL’s need to present the appearance of deep concern for the victims of head trauma so that one day, in court, they can claim to have done all they could to protect their players’ safety and punish those who endangered it.

It’s all about sincerity. If you can fake that, they say, you’ve got it made.

The NHL is covering its backside as expertly as possible so that a judge, down the road — when the league inevitably is called to account for the disproportionate number of ex-players suffering from post-career health issues — might buy the contention that it tried, really tried, to do the right things with rule changes and suspensions.

And in a limited sort of way, without outlawing fist-fighting, the league really is trying. But the walls are closing in, and a re-definition of what the game will tolerate cannot be many years away, any more than it can be for the National Football League.

There weren’t half as many angles to consider in the Bertuzzi deliberation.

That’s not to say it was without complications — hell, the civil suit still hasn’t gone to court — but from the NHL’s perspective, before Bertuzzi even got to present his side of the story, it was already known that the attack had broken a couple of vertebrae in Moore’s neck, and inflicted a concussion and facial lacerations, and that he would be lost to the Avalanche for the rest of the season.

So a sentence to match the minimum amount of time certain to be lost by the victim seemed fair enough.

In the case of Orpik then, who also suffered a concussion but is now back skating in Pittsburgh, the absence of a season- or career-ending injury would seem to let the league’s supplemental discipline department off the hook. Yes, Thornton was lucky it didn’t end up much worse, but that’s the way the NHL has traditionally meted out its version of justice: punishment to fit the injury, not the act, however heinous.

Significantly, that’s not happening this time.

In one way, Thornton’s attack on Orpik is not so different from, say Marty McSorley’s clubbing of Donald Brashear or even Bertuzzi’s assault of Moore — each so clearly unacceptable that it seems to transcend mere hockey thuggery and enter the realm of criminal act.

“Assault is assault is assault. Under any rules, of any era, in any sport, a cowardly attack from behind, especially one that causes horrific injury to the victim, crosses every line, breaks every known code of professional conduct, and ought to be punished as such ... and if the law gets involved to mete out more justice than the league is willing to administer, more power to the law.”

That paragraph appeared in a column I wrote at the time of the Bertuzzi case.

Many of the longest suspensions the NHL has handed out have been motivated by just that spectre: if it didn’t appear to be policing its game strenuously enough, the law might step in. Better to make an example of the most extreme cases, until they turn the spotlight off.

And the crisis always did pass, in time, because each incident was successfully argued to be an aberration, not a part of a pattern, not a reflection of a culture, nothing a coach, say, or a general manager — or a league — could be held accountable for.

But some fans, and a growing number of parents, are now seeing that pattern, convinced there is something larger than happenstance at work. Some, not all, have been sickened by the incidence of concussions and horrific injuries to players, and wonder why they would sign their kids up for it. Some, not all, believe there’s an insidious imperative in hockey that makes inflicting pain and physical punishment a basic requirement of NHL employment for all but a highly skilled few.

Calgary Flames hockey operations chief Brian Burke is by no means an advocate of reckless endangerment, but the philosophy he underlined Thursday in firing GM Jay Feaster — “I don’t like the way we play. I don’t like flag football. I like teams that bang. We want black-and-blue hockey. I want more hostility than I’m seeing out there right now” — nicely summarizes the NHL’s risky reliance on an overtone of violence to sell its product and win games.

The league’s lawyers cannot be unaware of what that conflict could expose the NHL to, years from now.

As TSN legal analyst Eric Macramalla wrote this week: “It seems unlikely that (Shanahan) will be working alone on this suspension. This will be a group effort with lawyers intimately involved. This incident raises complex legal issues and will be considered with care.

“Ultimately, the suspension is less a hockey decision and more a legal decision.”

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